Citation Nr: 0822503
Decision Date: 07/09/08 Archive Date: 07/14/08
DOCKET NO. 07-40 172 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Providence,
Rhode Island
THE ISSUES
1. Entitlement to a rating in excess of 50 percent for
bilateral hearing loss.
2. Entitlement to an increased evaluation for bilateral
tinnitus, currently evaluated as 10 percent disabling.
3. Entitlement to an increased evaluation for chronic otitis
media, currently evaluated as 10 percent disabling.
4. Entitlement to a total disability evaluation based on
individual unemployability due to service-connected
disabilities (TDIU).
REPRESENTATION
Appellant represented by: Massachusetts Department of
Veterans Services
WITNESSES AT HEARING ON APPEAL
Appellant and [redacted]
ATTORNEY FOR THE BOARD
A.G. Alderman, Associate Counsel
INTRODUCTION
The veteran had active military service from March 1943 to
December 1945.
This case comes before the Board of Veterans' Appeals (Board)
on appeal from a June 2007 rating decision of the Department
of Veterans Affairs (VA) Regional Office (RO) in Providence,
Rhode Island, that denied the veteran's claims.
The veteran testified at a personal hearing before the
undersigned Veterans Law Judge at the RO in May 2008. A
transcript of his testimony is associated with the claims
file.
The issues of hearing loss and TDIU are addressed in the
REMAND portion of the decision below and are REMANDED to the
RO via the Appeals Management Center (AMC), in Washington,
DC.
FINDINGS OF FACT
1. The 10 percent rating currently in effect is the maximum
schedular rating for tinnitus, whether it is perceived in one
ear or each ear; factors warranting an extraschedular rating
are not shown.
2. The veteran is already in receipt of the maximum rating
for his chronic otitis media.
CONCLUSIONS OF LAW
1. There is no legal basis for the assignment of a schedular
evaluation in excess of 10 percent for bilateral tinnitus.
38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.87, Diagnostic
Code 6260 (2007); Smith v. Nicholson, 451 F.3d 1344 (Fed.
Cir. 2006), cert. denied, 75 U.S.L.W. 3122 (U.S. Jan. 22,
2007) (No. 06-400).
2. The criteria for a disability rating greater than 10
percent for otitis media have not been met. 38 U.S.C.A. §§
1155, 5107 (West 2002); 38 C.F.R. §§ 4.1-4.7, 4.21,
Diagnostic Code 6200 (2007).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Disability ratings are determined by applying the criteria
set forth in VA's Schedule for Rating Disabilities, which is
based on the average impairment of earning capacity.
Individual disabilities are assigned separate diagnostic
codes. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (2007).
If two evaluations are potentially applicable, the higher
evaluation will be assigned if the disability picture more
nearly approximates the criteria required for that rating;
otherwise, the lower rating will be assigned. 38 C.F.R. §
4.7 (2007). Reasonable doubt as to the degree of disability
will be resolved in the veteran's favor. 38 C.F.R. § 4.3
(2007).
Pertinent regulations do not require that all cases show all
findings specified by the Rating Schedule, but that findings
sufficiently characteristic to identify the disease and the
resulting disability and above all, coordination of rating
with impairment of function will be expected in all cases.
38 C.F.R. § 4.21 (2007). Therefore, the Board has considered
the potential application of various other provisions of the
regulations governing VA benefits, whether or not they were
raised by the veteran, as well as the entire history of the
veteran's disability in reaching its decision. Schafrath v.
Derwinski, 1 Vet. App. 589, 595 (1991). The Board has
considered all the evidence of record, but has reported only
the most probative evidence regarding the current degree of
impairment, which consists of records generated in proximity
to and since the claim on appeal. See Francisco v. Brown, 7
Vet. App. 55 (1994).
Regarding the veteran's tinnitus and otitis media, the
veteran has already been assigned a rating of 10 percent for
each disability, which is the highest rating available by
law.
Diagnostic Code 6260, addressing tinnitus, provides a single
10 percent rating for tinnitus whether the sound is perceived
in one ear, both ears, or in the head. Under DC 6200, which
addresses otitis media disorders, the only compensable
evaluation warranted under this provision is 10 percent.
The remaining Diagnostic Codes are for chronic nonsuppurative
otitis media with effusion (Diagnostic Code 6201),
otosclerosis (Diagnostic Code 6202), peripheral vestibular
disorders (Diagnostic Code 6204), Meniere's syndrome
(Diagnostic Code 6205), loss of the auricle (Diagnostic Code
6207), malignant and benign neoplasms of the ear (Diagnostic
Codes 6208- 6209), chronic otitis externa (Diagnostic Code
6210) and perforation of the tympanic membrane (Diagnostic
Code 6211). None of these conditions exist on the record,
and thus a compensable evaluation under any of these
Diagnostic Codes would not be appropriate, even by analogy.
The Board finds that the evidence does not present such an
exceptional or usual disability picture as to render
impractical the application of the regular schedular
standards. See 38 C.F.R. § 3.321(b)(1) (2007). The overall
disability picture does not show any significant impairment
beyond that contemplated in the maximum rating assigned for
these disabilities, standing alone. Under the circumstances,
the Board is not required to remand this matter to the RO for
the procedural actions outlined in 38 C.F.R. § 3.321(b)(1).
See Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996); Floyd
v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8
Vet. App. 218, 227 (1995). The appeal is denied.
The Duty to Notify and Assist
As provided for by the Veterans Claims Assistance Act of 2000
(VCAA), the United States Department of Veterans Affairs (VA)
has a duty to notify and assist claimants in substantiating a
claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103,
5103A, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R.
§§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007).
Upon receipt of a complete or substantially complete
application for benefits, VA is required to notify the
claimant and his representative, if any, of any information,
and any medical or lay evidence, that is necessary to
substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R.
§ 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002).
Proper notice from VA must inform the claimant of any
information and evidence not of record (1) that is necessary
to substantiate the claim; (2) that VA will seek to provide;
(3) that the claimant is expected to provide; and (4) must
ask the claimant to provide any evidence in his possession
that pertains to the claim in accordance with 38 C.F.R.
§ 3.159(b)(1). This notice must be provided prior to an
initial unfavorable decision on a claim by the agency of
original jurisdiction, or regional office (RO). Mayfield v.
Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v.
Principi, 18 Vet. App. 112 (2004).
For an increased-compensation claim, section § 5103(a)
requires, at a minimum, that the Secretary notify the
claimant that, to substantiate a claim, the claimant must
provide, or ask the Secretary to obtain, medical or lay
evidence demonstrating a worsening or increase in severity of
the disability and the effect that worsening has on the
claimant's employment and daily life. Vazquez-Flores v.
Peake, 22 Vet. App. 37 (2008). Further, if the Diagnostic
Code under which the claimant is rated contains criteria
necessary for entitlement to a higher disability rating that
would not be satisfied by the claimant demonstrating a
noticeable worsening or increase in severity of the
disability and the effect that worsening has on the
claimant's employment and daily life (such as a specific
measurement or test result), the Secretary must provide at
least general notice of that requirement to the claimant.
Additionally, the claimant must be notified that, should an
increase in disability be found, a disability rating will be
determined by applying relevant Diagnostic Codes, which
typically provide for a range in severity of a particular
disability from noncompensable to as much as 100 percent
(depending on the disability involved), based on the nature
of the symptoms of the condition for which disability
compensation is being sought, their severity and duration,
and their impact upon employment and daily life.
As with proper notice for an initial disability rating and
consistent with the statutory and regulatory history, the
notice must also provide examples of the types of medical and
lay evidence that the claimant may submit (or ask the
Secretary to obtain) that are relevant to establishing
entitlement to increased compensation-e.g., competent lay
statements describing symptoms, medical and hospitalization
records, medical statements, employer statements, job
application rejections, and any other evidence showing an
increase in the disability or exceptional circumstances
relating to the disability. Vazquez-Flores, 22 Vet. App. 37.
Here, the VCAA duty to notify was satisfied by way of a
letter sent to the veteran in May 2007 that fully addressed
all notice elements and was sent prior to the initial RO
decision in this matter. The letter informed the veteran of
what evidence was required to substantiate the claim and of
the veteran's and VA's respective duties for obtaining
evidence. The veteran was also asked to submit evidence
and/or information in his possession to the RO.
VA has a duty to assist the veteran in the development of the
claim. This duty includes assisting the veteran in the
procurement of service medical records and pertinent
treatment records and providing an examination when
necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.
The Board finds that all necessary development has been
accomplished, and therefore appellate review may proceed
without prejudice to the veteran. See Bernard v. Brown, 4
Vet. App. 384 (1993). The RO has obtained VA outpatient
treatment records. The veteran submitted personal statements
and supporting lay statements, and was provided an
opportunity to set forth his contentions during the hearing
before the undersigned Veterans Law Judge. The veteran was
afforded a VA medical examination in May 2007.
Significantly, neither the veteran nor his representative has
identified, and the record does not otherwise indicate, any
additional existing evidence that is necessary for a fair
adjudication of the claim that has not been obtained. Hence,
no further notice or assistance to the veteran is required to
fulfill VA's duty to assist him in the development of the
claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281
F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet.
App. 143 (2001); see also Quartuccio v. Principi, 16 Vet.
App. 183 (2002).
ORDER
Entitlement to an increased evaluation for bilateral tinnitus
is denied.
Entitlement to an increased evaluation for chronic otitis
media is denied.
REMAND
The veteran seeks a disability rating greater than 50 percent
for his hearing loss and a grant of TDIU. He claims that his
hearing loss is so severe that it affects his ability to
obtain employment. The TDIU claim is based upon the
veteran's hearing disability. Since the two issues are
intertwined, both claims must be remanded for further
development.
In this case, the veteran has submitted statements and
testimony indicating that though he is of advanced age, he
still wishes to work but his service connected hearing
disabilities have rendered him unemployable. At the May 2008
hearing, he testified about his attempt to gain employment
with Otis Air Force Base and how he had to obtain his gun
permit and practice his skills at the firing range. He
stated that he worked hard to get that job, which took six
months of processing. He indicated his belief that his
hearing disability prevented him from being hired because the
job required that he speak to people at the gate; however, he
could not hear what people were saying. He stated that he
was told "[w]e can't hire you because of that reason."
J.W. Hill testified that he had managed the veteran's case
for two years. He stated that the veteran's hearing loss had
worsened over the years. He further stated that the veteran
is aggressively seeking employment despite his age.
The veteran had a VA examination in May 2007. After
completing the examination, the VA examiner opined that given
the veteran's hearing loss, poor word recognition, and age,
that it is expected that he would have severe difficulty
holding down employment.
In a statement dated June 2007, the veteran indicated that he
has been unable to work for a number of years due to his
service connected disabilities. He stated that he last
worked over 10 years ago. He indicated that age and
Parkinson's disease was slowing him down.
The veteran's bilateral hearing loss is evaluated at 50
percent disabling under Diagnostic Code (DC) 6100. 38 C.F.R.
§ 4.85. The basis for evaluating defective hearing is the
impairment of auditory acuity as measured by puretone
threshold averages within the range of 1000 to 4000 Hertz and
speech discrimination using the Maryland CNC word recognition
test. Id. Puretone threshold averages are derived by
dividing the sum of the puretone thresholds at 1000, 2000,
3000 and 4000 Hertz by four. Id. The puretone threshold
averages and the Maryland CNC test scores are given a numeric
designation, which is then used to determine the current
level of disability based upon a pre-designated schedule.
See Tables VI and VII in 38 C.F.R. § 4.85. Under these
criteria, the assignment of a disability rating is a
"mechanical" process of comparing the audiometric
evaluation to the numeric designations in the rating
schedule. See Lendenmann v. Principi, 3 Vet. App. 345, 349
(1993).
In addition, when the pure tone threshold at each of the four
specified frequencies (1000, 2000, 3000, and 4000 Hertz) is
55 decibels or more, the rating specialist will determine the
Roman numeral designation for hearing impairment from either
Table VI or Table VIA, whichever results in the higher
numeral. 64 Fed. Reg. 25202-25210 (1999) (codified at 38
C.F.R. § 4.86). Further, when the average pure tone
threshold is 30 decibels or less at 1000 Hertz, and 70
decibels or more at 2000 Hertz, the rating specialist will
determine the Roman numeral designation for hearing
impairment from either Table VI or Table VIA, whichever
results in the higher numeral. That numeral will then be
elevated to the next higher Roman numeral. Each ear will be
evaluated separately. Id.
In connection with his claim for an increased rating for
bilateral hearing loss, the veteran was afforded a VA
audiology examination in May 2007. Pure tone thresholds for
the right ear, in decibels, were 55, 75, 100, and 95, at
1000, 2000, 3000, and 4000 Hertz, respectively. The
veteran's right ear hearing acuity measured a puretone
threshold average of 81.25 decibels with speech recognition
of 54 percent. This corresponds to a numeric designation of
"VIII" under Table VI. 38 C.F.R. § 4.85. Pure tone
thresholds for the left ear, in decibels, were 60, 75, 75,
and 75, at 1000, 2000, 3000, and 4000 Hertz, respectively.
His left ear hearing acuity measured a puretone threshold
average of 71.25 decibels with speech recognition of 58
percent. This corresponds to a numeric designation of
"VIII" under Table VI. Id.
These combined numeric designations result in a rating of 50
percent under Diagnostic Code 6100. 38 C.F.R. § 4.85, Table
VII. Accordingly, the Board finds that the evidence of
record preponderates against a higher rating for bilateral
hearing loss.
The Board has considered the exceptional patterns of hearing
impairment as the veteran has puretone thresholds greater
than 55 decibels in each of the four specified frequencies
bilaterally. Using Table VI, the examiner indicated that
each ear should be assigned "VIII", providing a 50 percent
rating as discussed above. Using Table VIA, the examiner
indicated that the right ear should be rated as a "VII" and
the left at "VI", which provides for a 30 percent rating.
Thus, even if the Board were to apply Table VIA, this would
not result in higher Roman numeral values for either ear.
Based upon the evidence of record, the requirements of a
higher evaluation are not met. However, as the veteran has
indicated that his hearing loss has rendered him
unemployable, and since the VA examiner indicated that the
veteran's disability renders him unemployable, to accord
justice in an exceptional case where the schedular standards
are found to be inadequate, the RO is authorized to refer a
case to the Under Secretary for Benefits or the Director of
the Compensation and Pension Service for assignment of an
extraschedular evaluation commensurate with the average
earning capacity impairment. 38 C.F.R. § 3.321(b)(1) (2007).
The criterion for such an award is a finding that the case
presents an exceptional or unusual disability picture with
related factors as "marked" interference with employment or
frequent periods of hospitalization as to render impractical
application of regular schedular standards. The Court has
held that the Board is precluded by regulation from assigning
an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the
first instance; however, the Board is not precluded from
raising this question, and in fact is obligated to liberally
read all documents and oral testimony of record and identify
all potential theories of entitlement to a benefit under the
law and regulations. Floyd v. Brown, 9 Vet. App. 88 (1996).
The Court further held that the Board must address referral
under 38 C.F.R. §3.321(b)(1) only where circumstances are
presented which the Director of VA's Compensation and Pension
Service might consider exceptional or unusual. Shipwash v.
Brown, 8 Vet. App. 218, 227 (1995).
While the RO had previously determined that referral for
extraschedular consideration was not applicable, upon review
of the record, the Board finds that a remand is required to
permit the appropriate officials to consider the veteran's
claim on an extraschedular basis.
The veteran may be awarded a TDIU upon a showing that he is
unable to secure or follow a substantially gainful occupation
due solely to impairment resulting from his service-connected
disabilities. See 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.340,
3.341, 4.16. Consideration may be given to a veteran's level
of education, special training, and previous work experience
in arriving at a conclusion, but not to his age or the
impairment caused by any nonservice-connected disabilities.
See 38 C.F.R. §§ 3.341, 4.16, 4.19.
To qualify for a total rating for compensation purposes, the
evidence must show (1) a single disability rated as 100
percent disabling; or (2) that the veteran is unable to
secure or follow a substantially gainful occupation as a
result of his service-connected disabilities and there is one
disability ratable at 60 percent or more, or, if more than
one disability, at least one disability ratable at 40 percent
or more and a combined disability rating of 70 percent. Id.
Even if the ratings for a veteran's disabilities fail to meet
the first two objective bases upon which a permanent and
total disability rating for compensation purposes may be
established, the veteran's disabilities may be considered
under subjective criteria. If the veteran is unemployable by
reason of his disabilities, occupational background, and
other related factors, an extraschedular total rating may
also be assigned on the basis of a showing of
unemployability, alone. See 38 C.F.R. § 4.16(b).
In this case, the veteran's service-connected disabilities
include bilateral hearing loss, at 50 percent disabling;
chronic otitis media, at 10 percent disabling; and tinnitus,
at 10 percent disabling. The combined disability rating is
60 percent. Since no disability is rated at 60 percent or
more, and since his combined disabilities are not 70 percent
or more, the veteran's disabilities fail to meet the first
two objective bases upon which a permanent and total
disability rating for compensation purposes may be
established. However, the veteran's disabilities may be
considered under subjective criteria, which provides for an
extraschedular total rating assigned based on
unemployability. See 38 C.F.R. § 4.16(b).
As noted above, to accord justice in an exceptional case
where the schedular standards are found to be inadequate, the
RO is authorized to refer a case to the Under Secretary for
Benefits or the Director of the Compensation and Pension
Service for assignment of an extraschedular evaluation
commensurate with the average earning capacity impairment. 38
C.F.R. § 3.321(b)(1) (2007).
While the RO had previously determined that referral for
extraschedular consideration was not applicable, upon review
of the record, the Board finds that a remand is required to
permit the appropriate officials to consider the veteran's
claim on an extraschedular basis. See Thun v. Peake, No. 05-
2066 (U.S. Vet. App. April 23, 2008). In this regard, in
determining whether unemployability exists, consideration may
be given to the veteran's level of education, special
training and previous work experience, but not to his age or
to any impairment caused by non service-connected
disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19 (emphasis
added).
Accordingly, the case is REMANDED for the following action:
1. The RO shall refer the veteran's
increased rating claim for bilateral
hearing loss and TDIU to the Director of
the Compensation and Pension Service for
consideration of the claim on an
extraschedular basis under the provisions
of 38 C.F.R. § 3.321(b)(1) and 38 C.F.R. §
4.16(b).
2. Thereafter, if any claim remains
denied, the RO shall send the veteran and
his representative a supplemental
statement of the case discussing the
relevant laws and regulations, as well as
the reasons for any subsequent denial. The
case should thereafter be returned to the
board for further review, as appropriate.
The appellant has the right to submit additional evidence and
argument on the matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim
must be afforded expeditious treatment. The law requires
that all claims remanded by the Board of Veterans' Appeals or
by the United States Court of Appeals for Veterans Claims for
additional development or other appropriate action must be
handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B,
7112 (West Supp. 2008).
______________________________________________
JOHN J. CROWLEY
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs